On March 22, 2019, the European Commission’s Hearing Officer published his Activity Report for 2017-2018.[1] The Report provides key statistics on the Hearing Officer’s activity as well as a useful summary of case law on various procedural issues.

Notably, the Hearing Officer reported an increase in oral hearings from 5 in 2017 to 11 in 2018, including antitrust and merger control cases, the highest number so far. Some of this increase is attributable to more oral hearing requests in merger control proceedings, which is likely the result of the Commission having initiated almost twice as many Phase II investigations in 2018 as in 2017.

The Report also highlights the Hearing Officer’s views on several recent developments regarding procedural issues, such as the right to be heard, access to file, and confidentiality claims in the process of publishing decisions. For instance, in the aftermath of the Court of Justice’s judgment in Intel,[2] the Hearing Officer received several requests to obtain notes of meetings or calls between the Commissioner, her Cabinet, or DG Competition officials on the one hand, and complainants or other interested third parties on the other hand. In Intel, the Court had clarified that the Commission is obliged to record any interviews conducted for information gathering purposes during the course of an investigation.[3] The Hearing Officer however clarified that it does not have the authority to compel the Commission to draft such notes. The Hearing Officer can only grant access to such notes when they actually exist in the case file.

[1]      The European Commission’s Hearing Officer ensures impartiality and objectivity in competition proceedings. This is the case in both merger and antitrust proceedings, including, for example, organization of oral hearings, resolving procedural disputes between the case team and the parties, reviewing confidentiality and privilege claims, and preparing a report at the end of the case.

[2]      Intel v Commission (Case C-413/14 P) EU:C:2017:632.

[3]      The Commission has the power to conduct such interviews under Article 19 of Regulation 1/2003.